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Scandinavian Realists take a different stance to that of the Americans, arguing that the
key to how the law works is to examine the psychological reaction of legal arguments
on the minds of officials and others caught up in the laws administration. Elaborate
on the difference between the two approaches and discuss the Scandinavian Realists
view on the idea of the validity and bindingness of law in relation to the duty to obey
law.
The term Scandinavian Realism was introduced in the 1940s to refer to a group of
philosophers and law professors from Sweden, Denmark and Norway taking their
starting point in the philosophy put forward by the Swedish philosopher, Axel Anders
Theodor Hagerstorm.1 The philosophers include Ander Vilhelm Lundstedt, Karl
Olivecrona, and Alf Niels Christian Ross. Scandinavian Realists strictly reject natural
law and believe that legal concept shall be based on experience, observation and
experimentation.2 They believed that everything about law is not objective but
instead, subjective. Subjective means the personal impression to how law should be
whereas objective means to the external impression like religion and morality. So, law
is something that one observe or experiment with and it is real as it is not influenced
by external factors.
The movement is characterized by a sustained attack on metaphysical ideas as
manifested in the opposition between realism and idealism. 3 Realisms hold that there
is one world, the world of reality that is related to empirical cognition. They locates
the law as part of the world of reality in terms of facts that is related to legal cognition
as empirical knowledge of social facts. The Scandinavian Realisms believe that law is
subjected to psychological or emotional reaction. They reject the idea of metaphysics
and believe that concepts are embedded in the facts of physical reality that make an
impact upon the minds of human being using their senses of sight or touch to arrive at
certain knowledge.
According to Scandinavian, a written law can be identified as merely stating a
factual attitude of approval and disapproval towards certain acts. Justice, right and
wrong is personally subjective and cannot be stereotyped to be anything objective
http://ivr-enc.info/index.php?title=Scandinavian_Realism
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=1202&context=faculty_scholarship
3
http://ivr-enc.info/index.php?title=Scandinavian_Realism
2
such as morality and consent. They propose that legal concepts and law are per se
detached from any system of moral, religious and political value.4 They stated that it
is a complex system of linguistic and symbolic signs enacted with the purpose of
provoking a certain behavior to keep the society from a chaos. It is directive, that is to
show the right path for the community and judges ought to follow. The rules of
Scandinavian Realism revolve around three basic postulates, namely nature and
validity of law,5 significance of basic concepts of analytical jurisprudence and nations
of justice.6 Different philosophers propose different concepts with regard to their
views of Scandinavian approach. Even though both American Realism and
Scandinavian Realisms emphasis on the need to explore the social background of
legal rules and the need for basing the law on the needs of social life nevertheless,
both are distinct in certain manner.
Legal Realism (also known as American Legal Realism) should be
distinguished from its Scandinavian counterpart which had little concern for studies of
judicial decision-making and legal reasoning.7 Since Scandinavian Realists take a
different stance to that of the American Realists, both of them brings different
approaches on how the law works. Scandinavian Realists like Alf Ross, Axel
Hagerstorm and Karl Olivecrona thought that law should be analyzed through the
prism of social empirical sciences. Scandinavian Realists wanted to explain
scientifically how the law changes human behaviour. Scandinavian Realists was a
version of legal positivism, seeking a strict separation between law and politics and
law and morality.
Ratnapala, S., supra note 16, p. 109-116; Alexander, G. S. Comparing Two Legal Realisms
American and Scandinavian, American Journal of Comparative Law, 2002
forward looking and law should be moulded to fit the current and future needs of
society. Thus, since the view of American Realists on law as a social institution, the
need of the law to be binds is important.
In applying to the recent situation in Malaysia, courts apply binding precedent.
This binding precedent applies to all lower court which they must follow the decision
made by the higher court. On the other hands, Scandinavian Realists believes that law
should not be binding.
According to Olivecrona, he begins the First Edition of Law as Fact with a
consideration and rejection of the view that the law has a binding force. Having
rejected several attempts to explain the nature of the bonding force by reference to
social facts, such as feeling of being bound, or inability to break the law with
impunity, Olivecrona concludes that the binding force has no place in the world of
time and space, but must be located in some sort of supernatural realm. It must have a
realm on its own, outside the actual world. But, he objects this is absurd. The law
could not be located in a supernatural world beyond the world of time and space,
because there could be no connection between such a world and the world of time and
space.
As Olivecrona sees it, we have the dividing line between realism and
metaphysics, between scientific method and mysticism in the explanation of the law.
To believe the law has a binding force and that therefore the law belongs in a
supernatural world is to give up in any attempt at a scientific explanation of the law
and legal phenomena and to indulge in metaphysics. Since this one of the
Scandinavian Realists view on the bonding force of law, they believe that there is no
binding force upon the law.
While Alf Ross holds that law has a normative character. A norm is a
directive which stands in a relation of correspondence to social facts. The main
feature of legal norms is that these are directives addressed to courts. Validity can be
established in terms of social facts, for example that a rule is effectively followed, and
those who follow it take the rule to be binding on them. Both of them argued on the
theoretical operation of system as a whole by observing on matters of words and
validity of the law among people.
In discussing on the Scandinavian Realists view on the idea of the validity and
bindingness of law in relation to the duty to obey law, lets look at what is the concept
of validity of law. The concept of validity of law is purported by Alf Neils Christian
Ross who was a Danish legal and moral philosopher and scholar of international law.
He is best known as one of the leading exponents of Scandinavian Legal Realism.
Ross states in his book, On Law and Justice,8 stated that there is no a priori validity to
give the law some special position. Experience serves as a guideline. 9 Ross goes to the
trouble of particularly thanking Hagerstorm who opened my eyes to the emptiness of
metaphysical speculations in law and morality. Ross accepts Olivecronas view that
legal rules are independent imperatives but Ross prefers to use the term directives
which he defines as utterances with no representative meaning but with the intent to
exert influence.10 The consequence is that legal rules are devoid of any cognitive
meaning, and this is a version of legal nihilism.11
Ross introduces the theory of predictions that is prognosis theory which must
be considered as the core of the philosophy of law in the legal realism. 12 It is
8
9
10
11
12
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3080&context=ilj
http://en.wikipedia.org/wiki/Alf_Ross
http://ivr-enc.info/index.php?title=Scandinavian_Realism
Green, S. Micheal. Legal Realism as Theory of Law. Vol. 46.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1299&context=wmlr
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1299&context=wmlr
13
14
15
16
http://en.wikipedia.org/wiki/Legal_realism
M.D.A. Freeman. Introduction of Jurisprudence. Lloyds: Sweet & Maxwell, 2008.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3080&context=ilj
M.D.A. Freeman. Introduction of Jurisprudence. Lloyds: Sweet & Maxwell, 2008.
legislator, judge, etc. seems to open interesting perspectives and to shed light on at
least one aspect of these elusive norms. 19 The reason that the judge feels the rules to
be binding is the allegiance to the constitutions and the accepted sources of law.
Individual citizens obey the primary norms addressed to them from a mixture of
motives, fear of the sanctions to be imposed and belief that they should obey the law.
The Scandinavian realists deny that rules of law are heavily operative factor
in a legal system. Rules of law are abstract and unknowable entities. 20 Realists
emphasis the study of what the courts were in fact doing. Law must be defined in
terms of judicial action, not in term of rules. This is a frontal attack on rule based
theories like those of Hart and Raz. One of the most influenced Scandinavia realist is
Karl Olivecrona which provides on opinion of force of law. Karl Olivecrona was
a Swedish lawyer and legal philosopher. He studied law at Uppsala from 1915 to
1920. He was also a pupil of Axel Hagerstorm, the spiritual father of
Scandinavian legal realism.21 Olivecrona was a professor of procedural law and legal
philosophy at Lund University.22 Besides that, his writings emphasize the
psychological significance of legal ideas.
Karl Olivecrona is a prominent representative of the realistic legal theory. His
reasoning is based on hard facts and the reality that can be perceived, discarding
mysticism and religion. The law does not consist of divine commands, nor is it built
on commands stemming from an actual person posing as the legislator. In
Olivecrona's view, legal language serves as a means of social control, and while legal
terms may in reality be hollow words, they also serve as signposts with strong
19
http://www.jstor.org/discover/10.2307/3504945?
uid=3738672&uid=2&uid=4&sid=21103134418511
20
M.D.A.Freeman, Introduction To Jurisprudence, Sweet & Maxwell Publication, 8 th Ed.
21
Yatedo, Karl Olivecrona available at
http://www.yatedo.com/p/Karl+Olivecrona/famous/e2a4ced, accessed on 10 December
2013.
22
Ibid.
associations to legal concepts.23 He discarded the idea of the bindingness of law, and
consequently argued that the legal system consists of organized force. A legal system
unsupported by the use of organized force will become hollow and disrespected.
Legal rules that are not enforced will eventually succumb as the interdependency
between legal sanctions and law observance cannot be disregarded.
On the other hand, Karl Olivecrona also argued that law is essentially a huge
machinery set up for the purpose of protecting the security of society. Law is chiefly
consisting of rules about force and organized power.24People are bound to follow the
order as on the basis of the organized force which creates a sanction to the people to
follow the law. There is an idea of independent imperatives. It involves the idea of
action and an imperative mode of expression and the feeling from the psychological
association connected with the mode of expression with certain agencies.25 It is
emerges of the pattern of conduct in imperatives form which are distinguished from
other imperatives by virtue of the nature of feeling of being bound that is associated
with them. As for example, people in Westerns wearing black at the funeral.
The imperative statements found in the law must be distinguished from
commands. For example, a command implies some personal relationship arising
where X gives an order directly to Y in forms of words, gestures, which intended to
affect Ys will and subsequent actions. On the other hand, the imperative statement is
when there is the absence of a personal relationship between X and Y and been issued
independently, ordering actions and attracting the obedience. However, it is
impossible to maintain that law in a realistic sense is guaranteed or protected by force.
Besides that, Olivecrona also gives the example of a promise. The promisor feels
23
himself bound and promisee feels entitled to expect the promisor to act
accordingly.26 These are immediate psychological effects. Secondly, if the promise
corresponds to certain requirements of the law, it is relevant to actions by state organs.
The promisors awareness of exposure to a sanction forties the immediate
psychological effect of the promise. 27The custom, tradition, feelings of social
solidarity and duty and the residue of generations of historical developments, combine
to assure the binding, non optional character of independent imperatives.
Meanwhile, the imperative theory has been so thoroughly criticized by other
jurists. It would be hard indeed to maintain that the immense bulk of rules contained
in the law of a modern state which are the commands of any single human being. 28The
binding force of law is mirage of language. 29 It is just an idea in the individual mind.
Most people have the feeling being bound by the law. Thus the law takes place
through the psychology of individual. Feeling of being bound associated the citizen in
obeying the law.
In Malaysia, there is no application of Karl Olivecrona supposition as every
citizen must accepted and bound by the law. Eventhough psychologically citizen can
interpret the law as not a law, there are bound to it. Their view or value regarding to
the law itself did not being counted. For example, the non-Muslim citizen does not
have any obligation regarding to the act of kissing in public as their religion or custom
did not prohibit it. However, there are bound to the law in Malaysia where citizen
cannot act indecently and there are bound by the law which the act of indecent or
kissing is an offence and thus are liable to it.
26
Golding, M.P, Rights, Performatives and Promisor in Karl Olivecronas Legal Theory available
at http://scholarship.law.duke.edu/viewcontentarticle=1956&context=faculty_scholarship,
accessed on 10 December 2013.
27
Ibid.
28
M.D.A.Freeman, Introduction To Jurisprudence, Sweet & Maxwell Publication, 8 th Ed.
29
Shad Saleem Faruqi, Karl Olivecronas Theory, Handout Notes.